Full Opinion

Opinion issued October 30, 2026 In The Court of Appeals For The First District of Texas ———————————— NO. 01-24-00779-CV ——————————— RICHARD STEPHEN CALKINS, INDIVIDUALLY AND AS AGENT-IN- FACT, FOR MARY OLIVE CALKINS AND MICHAEL EASTON A/K/A MICHAEL JOSEPH BITGOOD, Appellants V. G. WESLEY URQUHART, MARY ELIZABETH URQUHART, AND G. WESLEY URQUHART, P.C., Appellees On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2011-21236 MEMORANDUM OPINION Appellants challenge the trial court’s judgment awarding incurred and conditional appellate attorney’s fees after remand from this Court in Urquhart v. Calkins, No. 01-17-00256-CV, 2018 WL 3352919, at *5 (Tex. App.—Houston [1st Dist.] July 10, 2018, pet. denied) (mem. op.). We affirm. Background In 2008, Carolyn Calkins James filed an application for guardianship of her mother, alleging that her brother, Richard Stephen Calkins, was abusing the power of attorney previously signed by their mother in his favor. James v. Calkins, 446 S.W.3d 135, 140 (Tex. App.—Houston [1st Dist.] 2014, pet. denied), abrogated by Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021). In December 2008, James filed a second suit against her brother alleging fraud in obtaining the power of attorney and other claims. James, 446 S.W.3d at 140. Calkins and Easton, who is not related to the siblings but has long purported to be the assignee of Calkins’s individual claims, id. at n.2, filed a third lawsuit in April 2011 against the probate court judge, his court administrator, James, and her lawyers, G. Wesley Urquhart and Kenneth Zimmern, alleging conspiracy to engage in ex parte communications with all Texas probate court judges. Id. After the effective date of the Texas Citizens Participation Act, appellants amended their petition, nonsuiting the probate court judge and his court administrator, adding Mary Elizabeth Urquhart and G. Wesley Urquhart, P.C. as defendants, omitting the original allegations, and alleging different claims, including that James and her lawyers had fraudulently appeared in various courts on behalf of James’s mother 2 and had fraudulently filed a lis pendens (notarized by Mary Elizabeth) on the mother’s house. Id. James and the appellees in this case filed a motion to dismiss under the TCPA that was overruled by operation of law, and they appealed. Id. On appeal, this Court reversed the denial and remanded to the trial court “to award costs, fees, expenses, and sanctions as required by the TCPA, and to order dismissal of the suit with prejudice.” Id. at 150. On remand, the trial court rendered an award and dismissed the suit. Urquhart v. Calkins, No. 01-17-00256-CV, 2018 WL 3352919, at *1 (Tex. App.—Houston [1st Dist.] July 10, 2018, pet. denied) (mem. op.). 1 G. Wesley Urquhart (“Urquhart”), G. Wesley Urquhart, P.C., and Mary Elizabeth Urquhart (“Mary Elizabeth”) appealed, arguing that the trial court abused its discretion by awarding less than requested in attorney’s fees, expenses, costs, and sanctions and by failing to award post-judgment interest. Id. This Court modified the trial court’s judgment to tax all court costs against Calkins and Easton and to include post-judgment interest. This Court also reversed and remanded for a determination of the proper amount of incurred and conditional appellate fees to be awarded. Id. The mandate issued in November 2020. In January 2021, Calkins filed a jury demand. In March 2023, the trial court granted Zimmern’s motion to withdraw from representation of James. On 1 During this lawsuit, Easton changed his name to Michael Bitgood. For ease of reference and consistency, we refer to him as Easton in this opinion. Urquhart v. Calkins, No. 01-17-00256-CV, 2018 WL 3352919, at *1 (Tex. App.—Houston [1st Dist.] July 10, 2018, pet. denied) (mem. op.). 3 March 24, 2023, the trial court held a hearing on appellate attorney’s fees. The appellees did not appear, although the trial court stated for the record that the hearing was properly noticed. Three days later, appellants filed a motion to show authority under Rule 12 of the Texas Rules of Civil Procedure asserting that Kenneth Zimmern, who had represented the appellees since 2011, had no legal authority to defend the case on remand. In response, appellees produced unsworn declarations from Zimmern and Urquhart attesting to the continuing representation of the appellees. Appellants argued that technical, formal deficiencies in the declarations invalidated them, and therefore the trial court had no choice but to dismiss the case, despite the mandate from this Court. Appellants also filed a motion to vacate the trial court’s March 24, 2023 final judgment. 2 On April 30, 2024, the trial court held a nonjury hearing on the incurred and conditional appellate attorney’s fees. The appellees first argued their Rule 12 motion to show authority, asserting that it could be raised at any time because it implicates subject matter jurisdiction. They also argued about technical deficiencies in Urquhart’s and Zimmern’s declarations. Finally, they argued that Mary Elizabeth had not filed a declaration. 2 The March 24, 2003 final judgment does not appear in the appellate record, but the order vacating it in June 2023 is included. 4 Before the trial court heard evidence, Easton argued that “we’ve made three demands for a jury trial . . . .” Based on the parties’ arguments and the trial court’s questions, the central question appeared to be whether a party was entitled to demand a jury for the question of attorney’s fees under the TCPA. During this part of the hearing, Norman, who represented Calkins in his representative capacity did not argue about entitlement to a jury, only responding to the court once to say “Chapter 27” when the court asked for the legal basis for the attorney’s fees. The court denied the request for a jury trial and the Rule 12 motion to show authority. The trial court entered final judgment on May 3, 2024. In August 2024, the court signed an amended final judgment, which included all the sums previously affirmed by this Court as well as the appellate attorney’s fees. This appeal followed. Analysis In this Court, appellants filed a joint brief that fails to clearly identify its issues. The brief asserts that it turns on standing, mootness, and the one satisfaction rule. It purports to present three issues: (1) “The Evidence and The Errors,” (2) “The Double Recovery/One Satisfaction Rule,” and (3) “The Mootness Question, Jurisdiction.” Although the appellants’ briefing is inadequate in this regard, see TEX. R. APP. P. 38.1, the Texas Supreme Court has often reminded courts of appeals to resolve cases on the merits rather than procedural defects and 5 to construe briefs liberally but reasonably so that parties do not lose the right to appeal to waiver. See, e.g., K&K Inez Props., LLC v. Kolle, 741 S.W.3d 83, 92 (Tex. 2026). We have reviewed the appellants’ brief and discern the following issues: (1) this Court lacks subject matter jurisdiction because the case is moot; (2) the trial court erred by failing to dismiss the case based on the Rule 12 motion to show authority and for lack of standing; and (3) the trial court erred by denying the appellants a jury trial. I. This Court has jurisdiction over this appeal. Appellants argue that this case has become mooted by intervening events. “[C]ourts always have jurisdiction to determine their own jurisdiction,” and “[a]ppellate jurisdiction is never presumed.” Heckman v. Williamson Cnty., 369 S.W.3d 137, 146 n.14 (Tex. 2012) (internal quotations omitted). Whether we have jurisdiction is a question of law, which we review de novo. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). The appellants argue that the following events mooted the case because they demonstrate that none of the appellees have standing: (1) Zimmern withdrawing from representation of James, (2) James paying some or all of Zimmern’s legal fees, (3) Zimmern’s presentation of bills for legal services to his other clients, and (4) the revocation of G. Wesley Urquhart P.C.’s corporate charter. Appellants 6 maintain that the case is entirely mooted, that is, none of the appellees have standing. We disagree. “A plaintiff must have both standing and capacity to bring a lawsuit.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). “A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy.” Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). In Texas, the standing doctrine requires that there be a real controversy between the parties that will be actually determined by the judicial declaration sought. Lovato, 171 S.W.3d at 849. While the question of capacity is procedural and must be raised by a verified pleading in the trial court, standing is jurisdictional and may be raised at any time. Id. at 848–49 (contrasting standing and capacity). We now consider the appellants’ arguments that the appellees no longer have standing. The appellants first argue that Zimmern’s withdrawal from representation of James destroys standing. In a prior appeal, Zimmern filed a brief on behalf of James and the appellees in this case on November 20, 2017. That same day, but 13 minutes later, James filed a motion to dismiss the appeal, in part, only as to her appeal. This Court granted James’s motion to dismiss on January 30, 7 2018. While that dismissal mooted James’s appeal, it had no effect on any of the other parties. Appellants point to a statement by Urquhart at a hearing in December 2012. He stated that he was “not a movant on this motion.” While the record excerpt is not entirely clear, appellants argue that this is proof that Urquhart was not a party to the motion to dismiss under the TCPA. This is false. We reject both the appellants’ argument and their attempt to relitigate issues that this Court has previously determined. See James, 446 S.W.3d at 150 (stating that appellants, including Urquhart, filed a motion to dismiss under the TCPA); see also Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003) (explaining law of the case doctrine). Appellants argue that James paid Zimmern from funds acquired through a probate court proceeding, mooting claims she has against appellants. The award in this case, however, is based on a statutory requirement. See TEX. CIV. PRAC. & REM. CODE §27.009. And no evidence in the record demonstrates that James paid Zimmern’s fees incurred in this case. 3 3 In May 2024, appellants filed a motion to modify the May 3, 2024 judgment. Attached to that motion were documents relating to James’s request for attorney’s fees in the probate proceeding regarding her mother’s estate. Those attachments included internal references to other attachments and spreadsheets that purportedly listed the matters in which attorney’s fees were incurred and which fees were paid. But those lists and spreadsheets are not in the appellate record in this case. In other words, the appellate record in this case does not demonstrate a connection between 8 Finally, the appellants argue that the 2023 tax forfeiture of the charter for G. Wesley Urquhart, PLLC shows the absence of standing and mootness. 4 Again, we disagree. Texas Tax Code section 171.251(2) provides that a corporation forfeits its corporate privileges if it fails to timely pay its franchise tax. TEX. TAX CODE § 171.251(2). Under section 171.252, “[i]f the corporate privileges of a corporation are forfeited under this subchapter . . . the corporation shall be denied the right to sue or defend in a court of this state.” Id. § 171.252(1); Liss v. Cushman & Wakefield of Tex., Inc., No. 01-23-00481-CV, 2025 WL 1799618, at *9 (Tex. App.—Houston [1st Dist.] June 30, 2025, no pet.) (mem. op.) (citing Manning v. Enbridge Pipelines (E. Tex.) L.P., 345 S.W.3d 718, 723 (Tex. App.—Beaumont 2011, pet. denied)). The right to sue or defend can be revived by paying delinquent taxes and complying with statutory requirements. See Liss, 2025 WL 1799618, at *9; see also, e.g., TEX. TAX CODE §171.312 (“Revival of Charter or Certificate of Authority After Forfeiture by Secretary of State”). “[W]hether a corporation can sue after its corporate charter is forfeited is an issue of capacity.” See Liss, 2025 WL 1799618, at *9. And “federal and state courts have long interpreted the attorney’s fees incurred in this case and any representations James made in the probate court. At the April 2024 hearing, Zimmern testified that James did not pay invoices he sent her regarding this case. 4 Although G. Wesley Urquhart, P.C. is the named party, in 2018, it converted to a PLLC. 9 language now expressed in section 171.252 to preclude entities only from filing a suit after forfeiting their right to do business, not to prohibit them from continuing an action filed when privileges had not been forfeited.” Waterway Ranch, LLC v. City of Annetta, 411 S.W.3d 667, 673 (Tex. App.—Fort Worth 2013, no pet.) (collecting cases); see also, e.g., Forte Hum. Cap., Inc. v. Shishido, No. EP-24-CV- 00365-LS, 2026 WL 493639, at *3 (W.D. Tex. Feb. 19, 2026). The underlying suit in this case was filed more than a decade before G. Wesley Urquhart, PLLC’s charter was forfeited. There remains a real controversy between the parties that will actually be determined by the disposition of this Court in this case. See Nootsie, Ltd., 925 S.W.2d at 661. We previously remanded to the trial court for rendition of judgment including appellate attorney’s fees. To the extent that the appellants now raise issues challenging the trial court’s judgment rendered in accordance with our mandate, this Court’s disposition will resolve the dispute. We conclude that the appellees have standing and this appeal is not moot. See id. We overrule this issue. II. The trial court did not err by not dismissing the case. The appellants argue that the court should have dismissed the case based on its Rule 12 motion to show authority. They argue that Zimmern’s declaration was deficient because it did not include his date of birth and home address in the statutory jurat. They further assert that G. Wesley Urquhart’s declaration is not 10 signed—they maintain that it was stamped with a rubber stamp imprint of his signature. They also maintain that Urquhart cannot attest on behalf of Mary Elizabeth Urquhart. Finally, they argue that the Rule 12 motion implicates standing. A party to a lawsuit who believes that the suit is being prosecuted or defended without authority may file a sworn motion questioning the attorney’s authority to act. TEX. R. CIV. P. 12; see In re Murrin Bros. 1885, Ltd., 603 S.W.3d 53, 61 (Tex. 2019) (addressing Rule 12 dispute). “Rule 12 has long been the exclusive method for questioning the authority of an attorney to bring a suit.” Tanner v. Black, 464 S.W.3d 23, 26 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (quoting Phillips v. Phillips, 244 S.W.3d 433, 435 (Tex. App.—Houston [1st Dist.] 2007, no pet.)); see Angelina Cnty. v. McFarland, 374 S.W.2d 417, 423 (Tex. 1964)). “A trial court’s ruling on a motion to show authority is not a decision on the merits or determination of ultimate questions of fact.” Tanner, 464 S.W.3d at 26 (citing In re Guardianship of Benavides, 403 S.W.3d 370, 374 (Tex. App.—San Antonio 2013, pet. denied)). “It is simply a pretrial determination of an attorney’s authority to represent a party.” Id. We review a trial court’s ruling on a motion to show authority for an abuse of discretion. Paine as Tr. for Stephen B. Paine Fam. Tr. v. Golden, No. 01-21- 00399-CV, 2023 WL 4110841, at *9 (Tex. App.—Houston [1st Dist.] June 22, 11 2023, no pet.) (mem. op.); Tanner, 464 S.W.3d at 26; see Urbish v. 127th Jud. Dist. Ct., 708 S.W.2d 429, 432 (Tex. 1986); see also Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (holding that trial court abuses its discretion by acting without reference to guiding rules and principles). When a party has filed a motion to show authority, the challenged attorney bears the burden of proof “to show sufficient authority to prosecute or defend the suit on behalf of the other party.” TEX. R. CIV. P. 12. If the challenged attorney fails to show authority to act, “the court shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears.” Id. Appellants argue that Urquhart did not personally sign his declaration that Zimmern represented him, his law firm, and Mary Elizabeth Urquhart. No record evidence supports this statement. Appellants have argued that the trial court should have struck the pleadings and dismissed the case because Zimmern failed to show authority. Rule 12 provides that if a challenged attorney fails to “show sufficient authority to prosecute or defend the suit . . . the court shall refuse to permit the attorney to appear in the cause and shall strike the pleadings if not person who is authorized to prosecute or defend appears.” TEX. R. CIV. P. 12. Appellants have asked us to take judicial notice of the records in prior appeals in this case, and those records demonstrate that Urquhart, a party to the suit who is authorized to defend, appeared 12 in person at prior hearings in this case. See, e.g., TEX. R. CIV. P. 7 (providing that party to suit may appear and defend his rights in person or by attorney). Urquhart’s declaration and prior appearance demonstrate that the defense and Zimmern’s representation was authorized by a party. As this Court has previously held, as a successful TCPA movant, Urquhart was entitled to attorney’s fees and court costs. See Urquhart, 2018 WL 3352919, at *5. Thus, in this appeal challenging the award of attorney’s fees, there is a real controversy between the parties that will be actually determined by this Court’s judgment. See Lovato, 171 S.W.3d at 849 (quoting Nootsie, Ltd., 925 S.W.2d 662). 5 Finally, we reject the appellants’ other arguments about the motion to show authority because they have not demonstrated harm. They have not shown how the judgment would differ as to them or how they were harmed by the ruling. See TEX. R. APP. P. 44.1(a) (Reversible Error in Civil Cases). This case proceeded to a hearing on appellate attorney’s fees owed for the joint representation of the appellees after this Court remanded a second time for that determination. At trial, 5 The appellants also argue that Zimmern’s declaration is fatally deficient because it does not include his date of birth or home address in the jurat. In their briefing, appellants argue as if Zimmern were a party. For example, on page 14 of their brief, they argue that Zimmern is barred from recovering the same fees twice. But an award of attorney’s fees is an award to the party, and Zimmern is not a party. We have concluded that Urquhart is a party, and that there remains a justiciable controversy between him and the appellants. 13 Zimmern testified that he sent the exact same invoice to all his clients. Because the fees were incurred for the joint representation of these appellees, on this record, a reasonable and necessary award of incurred and conditional attorney’s fees would be the same if the trial court made the award to all appellees or only to Urquhart. The trial court was required to enter judgment awarding incurred and conditional attorney’s fees. On remand, the trial court had “no authority to take any action that is inconsistent with or beyond the scope of that which is necessary to give full effect to the appellate court’s judgment and mandate.” Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013); see TEX. R. APP. P. 51.1(b). The trial court was required to determine the incurred and conditional appellate attorney’s fees owed to the appellees and enter judgment thereon. The trial court had no discretion to ignore this Court’s mandate and fail to enter judgment awarding appellees incurred and conditional appellate attorney’s fees. We overrule all issues relating to the motion to show authority. III. The trial court did not err by denying the appellants a jury trial. The appellants argue that the trial court erred by denying them a jury trial because reasonableness and necessity of attorney’s fees are questions of fact for which a party may demand a jury. Without any reference to a harm analysis, they maintain that this was fundamental error for which reversal is required. We disagree. 14 “A refusal to grant a jury trial is harmless error only if the record shows that no material issues of fact exist and an instructed verdict would have been justified.” Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991). “A directed verdict is proper only under limited circumstances, such as when there is no evidence of an essential element of a claim or defense, or when the evidence conclusively establishes the right of the movant to judgment or negates the right of the opponent.” Austin Bridge & Rd., LP v. Suarez, 556 S.W.3d 363, 376 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). At the April 2024 hearing, Zimmern testified about reasonable and necessary appellate attorney’s fees. Susan Norman testified as an expert witness on attorney’s fees for both appellants. Her testimony spans three pages. For example, she agreed that she had reviewed Zimmern’s billing records, posited that she found numerous discrepancies, and opined that Zimmern “doctored” the records. She did not explain the basis for her opinions that there were numerous discrepancies in the billing records or that Zimmern doctored the records. She then testified about an order from 2013 that she said described the trial court’s intention to sanction Urquhart for his behavior as an attorney. The trial court sustained appellees’ objection to relevance and testifying from a document not in evidence. Then Easton asked: Q: Ms. Norman, in your professional opinion, are the fees incurred since the time this case was appealed and came back, Mr. 15 Zimmern’s bills, beyond what the appellate court ordered as conditional appellate fees, were any of those fees reasonable or necessary? A: I believe not. It’s my opinion that they were not. When an appellate court remands a case and limits a subsequent trial to a particular issue, the trial court may only determine that particular issue. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); Nath v. Tex. Children’s Hosp., No. 14-19-00967-CV, 2021 WL 451041, at *6 (Tex. App.—Houston [14th Dist.] Feb. 9, 2021, no pet.). On remand, “the trial court has no authority to take any action that is inconsistent with or beyond the scope of that which is necessary to give full effect to the appellate court’s judgment and mandate.” Phillips, 407 S.W.3d at 234. In this case, we remanded to the trial court to determine incurred and conditional appellate attorney’s fees under section 27.009 of the Texas Civil Practice and Remedies Code. See Urquhart, 2018 WL 3352919, at *5. The only contested question for determination on remand was a reasonable amount of incurred and conditional appellate attorney’s fees. The evidence offered on that question was Zimmern’s testimony and records admitted at trial, as well as Norman’s brief testimony. While Norman testified that some poorly described portion of Zimmern’s fees were unreasonable, she did not explain the basis for her opinion. “An expert’s testimony is conclusory if the witness simply states a conclusion without an explanation or factual substantiation.” Bustamante v. Ponte, 16 529 S.W.3d 447, 462 (Tex. 2017). “If no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection.” Id.; accord City of San Antonio v. Pollock, 284 S.W.3d 809, 816–18 (Tex. 2009) (citing and quoting Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232–33 (Tex. 2004)). Norman’s opinion testimony about the reasonableness of Zimmern’s fees, that there were discrepancies in his billing records, and that he “doctored” the billing records is conclusory because she did not explain the basis for her opinions. See Bustamante, 529 S.W.3d at 462. “[C]onclusory testimony cannot support a judgment because it is considered no evidence.” Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 222 (Tex. 2019) (internal quotations omitted); see In re Estate of Bramblett, 722 S.W.3d 123, 130 (Tex. App.—Houston [1st Dist.] 2025, no pet.) (same). Thus, appellants proffered no evidence that created a disputed fact question on the matter of reasonable incurred and conditional appellate attorney’s fees. Accordingly, directed verdict would have been proper. See Austin Bridge, 556 S.W.3d at 376. We therefore conclude that, even if the denial of a jury in this case were error, it was harmless. See Halsell, 810 S.W.2d at 372. We overrule the appellants’ issues relating to the denial of a jury trial. 17 To the extent that appellants intended to raise any other issues in their brief, they are overruled as inadequately briefed. See TEX. R. APP. P. 38.1. Conclusion We affirm the judgment of the trial court. Susanna Dokupil Justice Panel consists of Justices Caughey, Morgan, and Dokupil. 18